S v Smith and Others (CC 95 of 1996) [1996] NAHC 16 (12 August 1996)

S v Smith and Others (CC 95 of 1996) [1996] NAHC 16 (12 August 1996)

Section 11(1) of the Act is not carefully designed to achieve its objective, is overbroad, impairs freedom of expression more than necessary, and stifles legitimate debate; it does not impose reasonable restrictions as required by Article 21(2) of the Constitution.

Citation
[1996] NAHC 16
Parties
Prosecutor: THE STATE; First Accused: ESTER SMITH NO; Second Accused: JOHANNES MARTIN SMITH; Third Accused: ELIZABETH BARBARA HAASE; Fourth Accused: ESTER SMITH
Court
High Court
Jurisdiction
Namibia
Judgment Date
12 August 1996
Case Number
CC 95 of 1996
Procedural Posture
Criminal / Constitutional Challenge to Indictment
Outcome
section 11(1) declared unconstitutional; charges quashed; Parliament given 6 months to amend
Legal Topics
Freedom of Speech, Racial Discrimination, Proportionality Test, Statutory Interpretation
Source Language
English
Constitutional Law Criminal Law Freedom of Speech Racial Discrimination Proportionality Test Statutory Interpretation

Case Brief

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Parties

THE STATE

Prosecutor

ESTER SMITH NO

First Accused

JOHANNES MARTIN SMITH

Second Accused

ELIZABETH BARBARA HAASE

Third Accused

ESTER SMITH

Fourth Accused

Procedural Posture

Criminal / Constitutional Challenge to Indictment

Legal Issues

  1. 1 Whether section 11(1) of the Racial Discrimination Prohibition Act, 26 of 1991 infringes the right to freedom of speech under Article 21(1) and (2) of the Constitution
  2. 2 Whether Parliament is entitled to legislate to prohibit racial discrimination and its propagation
  3. 3 Whether section 11(1) is overbroad and not carefully designed to achieve its objective

Ratio Decidendi

Section 11(1) of the Act is not carefully designed to achieve its objective, is overbroad, impairs freedom of expression more than necessary, and stifles legitimate debate; it does not impose reasonable restrictions as required by Article 21(2) of the Constitution.

Court Disposition

section 11(1) declared unconstitutional; charges quashed; Parliament given 6 months to amend

Orders

  • Section 11(1) of the Racial Discrimination Prohibition Amendment Act, Act no. 26 of 1991 is declared in conflict with Article 21(1) and (2) of the Constitution.
  • Parliament is allowed six months from the date of judgment to amend section 11(1) to conform with Article 21(2), failing which section 11(1) will become invalid ipso facto.